United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
KRISTEN L. MIX MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion
to Dismiss Portions of Amended Complaint
[#11] (the “Motion”). Plaintiff, who
proceeds in this matter pro se, filed a Response [#19] in
opposition to the Motion, Defendant filed a Reply [#20], and
Plaintiff filed a Surreply [#21]. Pursuant to 28 U.S.C. §
636(b)(1) and D.C.COLO.LCivR 72.1(c)(3), the Motion [#11] has
been referred to the undersigned for recommendation.
See [#17]. The Court has reviewed the Motion,
Response, Reply, Surreply, the entire case file, and the
applicable law, and is fully advised in the premises. For the
reasons set forth below, the Court respectfully
RECOMMENDS that the Motion [#11] be
GRANTED in part and DENIED in part.
outset, the Court notes that the factual allegations in
Plaintiff's Amended Complaint [#7] are sparse. Plaintiff
is a former employee of Defendant United Parcel Service
(“UPS”). Am. Compl. [#7] at 8. Plaintiff
worked as a driver throughout the course of his employment
with Defendant. Id. at 9. The conditions of
Plaintiff's employment and subsequent termination form
the basis of his claims.
employed by Defendant, Plaintiff alleges that on September
21, 2011, he was the “victim of an assault while on the
job that was swept under the rug.” Id. at
6. Plaintiff alleges that because of the assault, his
“health and mental status to [sic] a serious dive
within six months of accident [sic].” Id. at
12. Following this, Plaintiff avers that he was confronted
with “constant retaliation” from a month after
the assault until November 28, 2018. Id. at 6.
wake of the alleged assault, Plaintiff alleges that he
contacted several members of management personnel at UPS.
Id. at 14. However, Plaintiff avers that their
investigations into the incident were “bogus” and
that “[t]heir agenda was to try to exhaust his time to
file a claim.” Id.
also alleges that his rights under the Americans with
Disabilities Act (“ADA”) were violated when
Defendant assigned him a natural gas tractor, which he
alleges violated a doctor's order. Id. Plaintiff
avers that Defendant “constantly tried to place him in
combative scenarios” as a way to trigger his PTSD.
Id. at 9. Finally, Plaintiff alleges that his
“lung and skin disabilities” were “ignored
and at times disciplined for.” Id. at 10.
2017, Plaintiff was approved for a “no shave profile,
” in order to conceal a “highly inflamatory [sic]
skin condition.” Id. at 7. As a result of this
accommodation, Plaintiff avers that he was
“discriminated against, harassed[, ] and
humiliated” and that “the harassment reached its
peak” during this time. Id. Plaintiff alleges
that Defendant's management sought to terminate him by
attempting to goad him into anger with
“belligerent” remarks. Id.
circumstances of Plaintiff's progress through the
grievance process are far from clear. Plaintiff avers that
retaliation against him “intensified” as
Defendant received his “[first] formal complaint in May
of 2017.” Id. at 6. Plaintiff filed a charge
of discrimination with the Equal Employment Opportunity
Commission (“EEOC”) on June 20, 2017. See
id. at 13; Compl. [#1] at 18. Plaintiff alleges
that he was terminated shortly after his thirty-year
anniversary of working for Defendant. Am. Compl.
[#7] at 7.
filed this lawsuit on December 31, 2018, see Compl.
[#1], and filed an Amended Complaint [#7] on February 14,
2019. Plaintiff asserts he was subjected to an assault and
unlawful employment practices in violation of Title VII of
the 1964 Civil Rights Act and the ADA. See generally Am.
Compl. [#7] at 2. As relief, Plaintiff asks the Court
to: (1) “[h]old U.P.S. criminally liable”; (2)
“[k]eep [his] employment whole”; and (3)
“[a]ward [his] family [and himself] punitive damages
that exceed for [sic] the harm, distress, and damage that
[Defendant] has caused.” Am. Compl. [#7] at
15. Plaintiff seeks a total of twenty million dollars in
damages. Id. at 2. In the present Motion [#11],
Defendant seeks to dismiss these claims to the extent that
they are time-barred and legally deficient pursuant to
Fed.R.Civ.P. 12(b)(6). Motion [#11] at 6;
Reply [#20] at 2-3.
12(b)(6) tests “the sufficiency of the allegations
within the four corners of the complaint after taking those
allegations as true.” Mobley v. McCormick, 40
F.3d 337, 340 (10th Cir. 1994). To survive a Rule
12(b)(6) motion, “[t]he complaint must plead sufficient
facts, taken as true, to provide ‘plausible
grounds' that discovery will reveal evidence to support
plaintiff's allegations.” Shero v. City of
Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “[P]lausibility refers to the scope of the
allegations in a complaint: if they are so general that they
encompass a wide swath of conduct, much of it innocent, then
the plaintiff[ ] [has] not nudged [his] claims across the
line from conceivable to plausible.” Khalik v.
United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
(internal quotations and citations omitted).
“[a] claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). However, “[a] pleading that
offers ‘labels and conclusions' or a formulaic
recitation of the elements of a cause of action will not do.
Nor does the complaint suffice if it tenders ‘naked
assertion[s]' devoid of ‘further factual
enhancement.'” Id. (citation omitted).
That said, “[s]pecific facts are not necessary; the
statement need only give the defendant fair notice of what
the . . . claim is and the grounds upon which it
rests;” the 12(b)(6) standard does not “require
that the complaint include all facts necessary to carry the
plaintiff's burden.” Khalik, 671 F.3d at
1192 (citation omitted).
“[t]he plausibility standard is not akin to a
‘probability requirement,' but it asks for more
than a sheer possibility that defendant has acted
unlawfully.” Iqbal, 566 U.S. at 678 (citation
omitted). As the Tenth Circuit has explained, “the mere
metaphysical possibility that some plaintiff could
prove some set of facts in support of the pleaded
claims is insufficient; the complaint must give the court
reason to believe that this plaintiff has a
reasonable likelihood of mustering factual support for
these claims.” Ridge at Red Hawk, LLC v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(emphasis in original). “Where a complaint pleads facts
that are ‘merely consistent with' a defendant's
liability, it ‘stops short of the line between
possibility and plausibility of entitlement to
relief.'” Iqbal, 556 U.S. at 678 (citation
determine if a complaint survives a motion to dismiss, courts
utilize Rule 8, instructing that “[a] plaintiff must
provide a ‘short and plain statement of the claim
showing that the pleader is entitled to relief.'”
Tuttamore v. Lappin, 429 Fed.Appx. 687, 689 (10th
Cir. 2011) (quoting Fed.R.Civ.P. 8(a)(2)). As with Rule
12(b)(6), “to overcome a motion to dismiss, a
plaintiff's allegations must move from conceivable to
plausible.” Id. Indeed, “Rule 8(a)'s
mandate . . . has been incorporated into the 12(b)(6)
inquiry.” United States ex rel. Lemmon v.
Envirocare of Utah, 614 F.3d 1163, 1171 (10th Cir.
2010). Rule 8 enables “the court and the defendants to
know what claims are being asserted and to determine how to
respond to those claims.” Tuttamore, 429
Fed.Appx. at 689.
construing the Amended Complaint, Plaintiff seeks to bring
claims against Defendant for: (1) the alleged assault in
2011, (2) “constant retaliation” from October 11,
2011, until November 28, 2018, and (3) alleged discrimination
on the basis of a disability. See Am. Compl. [#7] at
5-10. Further, Plaintiff asserts that Defendant's
employees had an “agenda” to “try and
exhaust [his] time to file a claim.” Am.
Compl. [#7] at 14. In the present Motion, Defendant
raises two defenses: (1) any claim under Title VII or the ADA
stemming from events that occurred prior to August 24, 2016,
is barred by the statute of limitations, and (2) any assault
claim is barred by the applicable Colorado statute of
limitations. Motion [#11] at 8. Additionally,
Defendant argues that Plaintiff's retaliation claim is